Citation Nr: 1504639
Decision Date: 01/30/15 Archive Date: 02/09/15
DOCKET NO. 09-29 839 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder (claimed as depression, anxiety and mood swings).
REPRESENTATION
Veteran represented by: Daniel G. Krasnegor, Attorney
ATTORNEY FOR THE BOARD
Jeremy J. Olsen, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Navy from September 1978 to April 1980.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.
In July 2010, November 2011, and April 2013, the Board remanded the Veteran's appeal to the agency of original jurisdiction (AOJ) for further development.
The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required.
REMAND
Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection for an acquired psychiatric disorder so that he is afforded every possible consideration. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998).
As noted above, the Veteran's claim for service connection for an acquired psychiatric disorder was previously remanded by the Board in April 2013 for further development. The Board instructed the AOJ to contact the VA examiner who performed the March 2012 mental disorders examination and determine a schedule of drug testing that the Veteran could undergo in order to ensure complete abstinence from any illicit substances, therefore ensuring his examination was not influenced by same. The AOJ was instructed to then contact the VA Medical Center (VAMC) in Memphis, Tennessee and schedule the Veteran for the drug testing. If such testing was infeasible, the AOJ was to explain why. Once the Veteran's sobriety was achieved, the AOJ was to have the March 2012 examiner re-examine the Veteran and perform a follow-up mental disorders examination to ascertain if the Veteran had any Axis I or Axis II mental disorders, and, if so, provide a medical opinion that addressed their etiology.
In October 2013, in response to the AOJ's inquiry, the March 2012 examiner indicated she was not a specialist in addictive disease and would not be able to provide a schedule of drug testing for the Veteran. Furthermore, she indicated she was no longer conducting Compensation and Pension examinations and, therefore, would not be available for a follow-up examination of the Veteran, once sobriety was achieved. In regard to a requested medical opinion, the examiner stated her March 2012 medical opinion remained "unchanged."
In March 2014, Z.T., a VA psychologist, reviewed the Veteran's claim folder and addressed the remand directives. Z.T. indicated that routine testing in order to ensure complete abstinence from drugs could not be done because such a program is beyond the scope of a VA examination. In addition, Z.T. then opined that while the Veteran was likely suffering a Major Depressive Episode while in service, there was no evidence in the file that showed any aggravation of a pre-military psychiatric disorder.
The Board finds that the neither the October 2013 nor March 2014 examination report complies with the Board's remand directives. The October 2013 report concluded with a reconfirmation of the results of the March 2012 exam, which the Board found to be inadequate in its April 2013 remand. The March 2014 report, while explaining why drug testing the Veteran would not be possible, failed to examine the Veteran and was based solely on a review of the Veteran's file.
The Board is obligated by law to ensure that the AOJ complies with its directives. See Stegall, supra. By failing to ensure that the Veteran was afforded an adequate examination, the AOJ did not substantially comply with the April 2013 remand directives. Therefore, the Board must again remand this claim for these actions to be accomplished. Id.
The Board also notes that the most recent VA treatment records in the Veteran's file are dated through March 2013. On remand, any additional VA treatment records dated from March 2013 to the present should be located and associated with the claims file.
In addition, the Veteran's claim file contains evidence of past private treatment for psychiatric disorders. To ensure that the record is complete, the AOJ should contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations for such records. See 38 C.F.R.
§ 3.159.
Accordingly, the case is REMANDED for the following action:
1. Obtain updated VA treatment records from March 2013 to the present. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations for such records. If the Veteran responds, all reasonable attempts should be made to obtain such records. If any records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession.
If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5104A(b)(2) and 38 C.F.R.
§ 3.159(e).
2. Once the above development has been completed and associated with the claims file, schedule the Veteran for an in-person VA mental disorders examination.
Prior to the examination, appropriate psychological testing should be conducted to determine the exact nature and extent of any personality disorder the Veteran may have.
After reviewing the claims file and examining the Veteran, the examiner should render diagnoses of both Axis I and Axis II disorders currently present. If the Veteran is not shown to have a current Axis I diagnosis other than alcohol and cocaine abuse, fully explain the basis for that conclusion.
The examiner should address whether an Axis I disorder other than alcohol or cocaine abuse was present at any time since the Veteran filed his claim in June 2007, taking into consideration the Veteran's private medical evidence showing a diagnosis of major depressive disorder in October 2009 and either bipolar disorder or mood disorder, not otherwise specified, in August and September 2011.
If an Axis I psychiatric disorder other than alcohol and cocaine abuse is found to presently exist, or to have existed at any time since the Veteran filed his claim, please address the following questions:
(a) Is it at least as likely as not (i.e., at least a 50 percent probability) that each current Axis I disorder identified (other than alcohol and cocaine abuse) was present in service, or is in any way related to service?
(b) If any current Axis I disorder (other than alcohol and cocaine abuse) was present in service, is there clear and unmistakable evidence that such disorder existed prior to the Veteran's entry into active service? If so, is there clear and unmistakable evidence that this preexisting Axis I disorder was not aggravated (i.e., did not undergo a permanent increase in severity of the underlying disorder) beyond its natural progression during service?
In answering this question, the examiner is hereby informed that "aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptoms.
In rendering the opinion, the examiner should explain why any symptoms and findings noted in service do or do not reflect permanent worsening of the pre-existing disability (as opposed to being only a temporary exacerbation of symptoms).
A detailed rationale must be provided for any opinion offered.
3. Thereafter, the Veteran's claim should be readjudicated. If such action does not resolve the claim, a supplemental statement of the case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (2014).